Friday 24 November 2017

Award of mobile phone licence to Esat can now be challenged in court

Dearbhail McDonald and Tim Healy

TWO failed bidders for the State's second mobile phone licence can challenge the award of the lucrative licence to a consortium led by businessman Denis O'Brien.

Yesterday, the Supreme Court cleared the way for Comcast International Holdings Incorporated and Persona Digital Telephony Ltd to challenge the manner in which the licence was awarded in 1995 to Esat Digifone, the O'Brien-led consortium.

The stage is now set for a multimillion-euro damages action against the State, but the case is not likely to be heard until 2014.

Last night, Communications Minister Pat Rabbitte said the State would "fully defend" any claim against the Exchequer and contest any claim of liability to pay damages from public funds to the failed bidders.

Comcast and Persona Digital Telephony initiated separate actions in 2001, challenging the licence award. Five years ago, the High Court ruled that the cases could not proceed because of an inordinate and inexcusable delay in prosecuting them.

A similar motion by Mr O'Brien to halt a Comcast action against him on grounds of delay was "parked" pending the outcome of the consortia's appeals to the Supreme Court.

The companies appealed the High Court finding and the Supreme Court heard Persona and Comcast's appeals over three days last week.

Yesterday, a five-judge court led by Chief Justice Susan Denham ruled that the cases could proceed. That ruling has been welcomed by the failed bidders, Mr O'Brien and former minister Michael Lowry.

Last year, the Moriarty Tribunal found that Mr Lowry had "conferred a benefit" on Mr O'Brien, "a person who made payments to Mr Lowry".

Both men rejected the tribunal's findings.

Persona's Michael McGinley said yesterday's ruling was a "big moment", adding: "We will pursue this with all we have."

In a statement, Mr O'Brien said he was "absolutely satisfied that these allegations being pursued by Persona and Mr Ganley will be demonstrated to be devoid of evidence and substance".

He continued: "I have always believed that the appropriate forum in which to have these allegations against the licence process heard and adjudicated upon was the courts and not the tribunal of inquiry."


Mr O'Brien added that he welcomed the opportunity to vigorously defend the High Court action.

Mr Lowry, who was the minister with overall responsibility for the awarding of the licence, said he had always advocated that a court of law, "with its established rules and procedures", was the proper forum to critically probe the process.

In the appeals, counsel for both consortia argued that they were entitled to await the outcome of the Moriarty Tribunal's investigation into the licence award and could not have prosecuted the claim without that and certain other material.

Giving the court's decision yesterday, Judge Denham said the court would give its reasons in a written judgment later.

Irish Independent

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